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Local law enforcement will be responsible for enforcement of state's new smoke-free law

Staff with the First District Health Unit Tobacco Prevention Program cannot enforce the state’s new smoke-free law, which went into effect December 6th.

12/13/12 (Thu)

By Caroline Downs

Staff with the First District Health Unit Tobacco Prevention Program cannot enforce the state’s new smoke-free law, which went into effect December 6th.

They can, however, answer questions from business owners working to follow the law in their establishments. “We’re the education people,” said Holly Brekhus, Tobacco Prevention Outreach Coordinator at FDHU in Minot. “We’re getting a lot of calls from business owners who are trying to get into compliance with the law.”

She noted local law enforcement has the responsibility for responding to violations of the law, which prohibits smoking in all indoor public places, including bars, truck stops, designated motel rooms and work vehicles where smoking was formerly allowed. Smoking is also prohibited outdoors within 20 feet of any doorways, windows that can be opened or air intake systems of a public building.

“We can educate business owners,” Brekhus said, “and people will complain to us about a business being out of compliance. Then we basically notify business owners there was a complaint filed and make them aware of the law.”

Smoking sheltersThe questions have been coming from all sides since the initiated measure was approved by voters November 6th. Brekhus said several business owners have asked about smoking shelters, which the FDHU Tobacco Prevention Program addressed through a letter.

“We’re operating under the premise a smoking shelter is an enclosed public place, so smoking would not be allowed in those,” said Brekhus. “If they’re going to build a shelter, it has to be 20 feet from any entry, window or air intake.”

She explained the walls of the shelter can only enclose up to 33 percent of the perimeter to comply with the law. The roof of the shelter is not included in that calculation.

“You’re kind of limited as to what you can do,” she said, “and we don’t want business owners to go to the expense of building some elaborate smoking shelter and then find out they’re not in compliance.”

She also mentioned business owners have to follow their city’s regular building permit process in order to construct a shelter, with further information available from city auditors about the related requirements.

Ashtrays and tobacco salesAnother concern of business owners, especially bar owners, relates to the presence of ashtrays in their establishment and tobacco products offered for sale.

Brekhus said the new law has no impact on sales of tobacco products. “The law doesn’t affect cigarettes sales or tobacco sales in any way, shape or form,” she said.

However, she pointed out North Dakota Century Code 23-12-10.1.4 clearly specifies all ashtrays have to be removed from any area where smoking is prohibited, unless those ashtrays are displayed for sale and not for use on the business premises.

“The reason why they do that is because if people see an ashtray sitting on the bar, they will assume they can smoke,” said Brekhus. “This applies to any business, not just bars. Ashtrays need to be moved to where smoking is allowed.”

She said business owners should choose a location 20 feet from any entrances, windows or doors of their establishment and place a smoking post there. “It only makes sense to have ashtrays where smoking is allowed, because that’s where people will congregate to smoke,” she said.

E-cigarettesOne aspect of the law that has generated several questions is the prohibited use of electronic cigarettes. “They’re included in the law,” said Brekhus. “People can’t use them in a public place.”

She noted two reasons for listing e-cigarettes, which are marketed as a tobacco cessation device, starting with the difficulty of enforcing the law when e-cigarettes are present. E-cigarettes look identical to traditional cigarettes.

“The other thing is that e-cigarettes as a nicotine replacement product have not been approved yet as a cessation aid by the FDA,” said Brekhus. Because nicotine levels are not regulated in the e-cigarettes, the safety of the item for consumers has not been evaluated.

The U.S. Food and Drug Administration website lists other smoking cessation aids that have received approval from the FDA, including nicotine gum, nicotine skin patches, nicotine lozenges, nicotine oral inhaled products, and nicotine nasal spray. North Dakota’s new smoke-free law makes no reference to the use of any of these items in public places.

Extended stay motelsBrekhus has heard from motel owners, including Sandy Nelson of the San Way Ve in Kenmare, with questions about applications of the law to extended stay motels. “The question has come up about whether or not the motel is licensed differently if it’s an extended stay facility,” said Brekhus. “We know several of the new ones opening [throughout western North Dakota] are smoke-free already.”

According to Brekhus, at this point interpretation of the law assumes all motel and hotel businesses are covered by the smoking prohibition. “A motel is a motel, whether rooms are rented by the night or by the month,” she said.

She referred to the difference between an apartment and a motel room. “[Staff] will go in and clean your room in a motel, but not in an apartment,” she said. Because motel rooms are the workplace for that cleaning staff, smoking in the room is not permitted.

Signs requiredin businessesBrekhus reminded business owners they must post “No Smoking” signs under the new law. In fact, signage is mandatory at each entrance to a business or workplace, including buildings used as work sites by farm employees. Signs must also be posted in all workplace vehicles.

“There’s no set format you have to use for the signs,” she said, adding that business owners could download and print signs online at www.BreatheND.com. “But the signage portion of the law does apply to all businesses, not just the ones that previously allowed smoking.”

Cities asked to adoptnew law as ordinanceBrekhus said the FDHU Tobacco Prevention Program is encouraging city councils to approve the new state law as a city ordinance. “Local communities can implement stronger laws than the state law,” she said, describing an ordinance in Grand Forks that prohibits smoking anywhere food is sold, served or consumed indoors and outdoors.

Brekhus is researching the topic of penalties charged for violations of the smoke-free law at the state and local levels. “This is a state law, but if it’s adopted as a city ordinance, would a portion of any fines collected be returned to the city?” she asked. “Could a city receive revenue from this? It might be a way for the fines to be handled more quickly. We’re looking into it.”

Call FDHU with other questionsBrekhus welcomed additional questions about North Dakota’s new smoke-free law by calling her at 701-837-5106. She also referred to information available online at www.BreatheND.com.

She advised business owners and others that she serves as an educator, not an attorney. “I can provide the best information I know, but I can’t interpret the law,” she said. “It’s something your customers are going to get have to get used to. This is a learning process, and we want to do whatever we can to help the business owners.”